Tamawood Ltd v Habitare Developments Pty Ltd

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FEDERAL COURT OF AUSTRALIA

Tamawood Limited v Habitare Developments Pty Ltd (Administrators Appointed) (Receivers and Managers Appointed) [2015] FCAFC 65

Citation: Tamawood Limited v Habitare Developments Pty Ltd (Administrators Appointed) (Receivers and Managers Appointed) [2015] FCAFC 65
Appeal from:

Tamawood Ltd v Habitare Developments Pty Ltd (Administrators Appointed) (Receivers and Managers Appointed) (No 3) [2013] FCA 410

Tamawood Ltd v Habitare Developments Pty Ltd (Administrators Appointed) (Receivers and Managers Appointed) (No 6) [2013] FCA 1383
Parties:

TAMAWOOD LIMITED ACN 010 954 499 v HABITARE DEVELOPMENTS PTY LTD (ADMINISTRATORS APPOINTED) (RECEIVERS AND MANAGERS APPOINTED) ACN 122 935 497, BLOOMER CONSTRUCTIONS (QLD) PTY LTD ACN 071 344 100, PETER FREDERICK O'MARA, DAVID GAVIN JOHNSON, WAYNE NORMAN BLOOMER and MONDO ARCHITECTS PTY LTD ACN 085 992 990

MONDO ARCHITECTS PTY LTD ACN 085 992 990 v TAMAWOOD LIMITED ACN 010 954 499

SHANE ANDREW O’MARA v TAMAWOOD LIMITED ACN 010 954 499, MONDO ARCHITECTS PTY LTD ACN 085 992 990, RAYMOND JOHN MCDONALD SWEENEY
File numbers: QUD 223 of 2014
QUD 235 of 2014
QUD 240 of 2014
Judges: GREENWOOD, JAGOT AND MURPHY JJ
Date of judgment: 18 May 2015
Catchwords:

COPYRIGHT – whether contractual licence created – whether infringement of copyright occurred – whether defence of indirect copying available – whether defence of innocent infringement under s 115(3) of Copyright Act 1968 (Cth) available – whether there was an authorisation of infringement – whether additional damages available under s 115(4) of Copyright Act 1968 (Cth)

TRADE PRACTICES – whether misleading conduct under s 72B of the Trade Practices Act 1974 (Cth)

COSTS – costs order set aside

Legislation: Copyright Act 1968 (Cth) ss 36(1),(1A), 115(3),(4)
Trade Practices Act 1974 (Cth) s 75B
Cases cited: Aristocrat Technologies v DAP Services (2007) 157 FCR 64
Blatch v Archer (1774) 1 Cowp 63; (1774) 98 ER 969
BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 at 283
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Cooper v Universal Music Australia Pty Ltd (2006) 156 FCR 380
Devries v Australian National Railways Commission (1993) 177 CLR 472
Eagle Homes Pty Ltd v Austec Homes Pty Ltd (1999) 87 FCR 415; [1999] FCA 138
Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17; [2004] FCAFC 189
Fox v Percy (2003) 214 CLR 118
Francis Day & Hunter Ltd. v. Bron [[1963] Ch. 587
Futuretronics.com.au Pty Limited v Graphix Labels Pty Ltd(No 2) (2008) 76 IPR 763; [2008] FCA 746
Golden Editions Pty Ltd v Polygram Pty Ltd (1996) 61 FCR 479
Hadid v Redpath (2001) 35 MVR 152
Hanfstaengl v Baines & Co [1895] AC 20
House v The King (1936) 55 CLR 499
Krueger Transport Equipment Pty Ltd v Glen Cameron Storage & Distribution Pty Ltd (No 2) [2008] FCA 1493
Ladbroke (Football) Ltd. v. William Hill (Football) Ltd [[1964] 1 W.L.R. 273, at p. 276; [1964] 1 All E.R. 465
LED…
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Details
Case
[2015] FCAFC 65
Decision Date

CaseChat Overview and Summary

Tamawood Ltd, a designer and builder of project homes, took legal action against Habitare Developments Pty Ltd, a developer of low-cost, high-density housing, along with its subsidiaries and officers, over the use of its architectural plans for low-cost housing developments. The case was heard by the Federal Court of Australia. The central dispute revolved around whether Habitare had infringed Tamawood's copyright by using its architectural plans without permission and whether Habitare had engaged in misleading conduct under the Trade Practices Act 1974. The court also had to determine if certain defences and remedies were available under the Copyright Act 1968.

The primary issues for the court to decide were: whether a contractual licence had been created between Tamawood and Habitare that allowed the latter to use Tamawood's architectural plans; if Habitare had infringed Tamawood's copyright by indirectly copying the plans; if Habitare could rely on the defence of innocent infringement or the defence of indirect copying; if Habitare had authorised the infringement of copyright; and whether additional damages could be awarded under the Copyright Act. Furthermore, the court needed to assess if Habitare's conduct constituted misleading conduct under the Trade Practices Act. The appeals also addressed the setting aside of a costs order.

In its reasoning, the court examined the relationship between Tamawood and Habitare and found that no contractual licence existed for Habitare to use Tamawood's plans. It determined that Habitare had indeed infringed Tamawood's copyright by preparing its own plans based on Tamawood's designs. The court held that the defence of indirect copying was not applicable in this case. However, Habitare could potentially benefit from the defence of innocent infringement under section 115(3) of the Copyright Act. The court found that Habitare had authorised the infringement of copyright, which led to the rejection of the defence of innocent infringement. Regarding additional damages under section 115(4) of the Copyright Act, the court ruled that these were not available in this case. As for the misleading conduct claim under the Trade Practices Act, the court dismissed it, finding no evidence of misleading conduct by Habitare. Finally, the court set aside the costs order previously made.

ORDERS:
1. The parties confer and submit within 14 days agreed or competing proposed orders which reflect the reasons for judgment published today.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The parties confer and submit within 14 days agreed or competing proposed orders which reflect the reasons for judgment published today.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

This matter involves three appeals and four notices of contention between multiple parties arising from orders consequential on two judgments (Tamawood Ltd v Habitare Developments Pty Ltd (Administrators Appointed) (Receivers and Managers Appointed) (No 3) (2013) 101 IPR 225; [2013] FCA 410, referred to below as the principal judgment and Tamawood Ltd v Habitare Developments Pty Ltd (Administrators Appointed) (Receivers and Managers Appointed) (No 6) [2013] FCA 1383, referred to below as the costs judgment). Despite this apparent complexity, there are nine issues which arise for determination. To understand these issues it is necessary to identify the parties and the claims between them. Tamawood Ltd (Tamawood) designs and builds project homes. Habitare Developments Pty Ltd (Habitare), now in liquidation, was a developer of low cost, high density housing. Habitare used other subsidiary companies, in this case Eight March Pty Ltd (as trustee of the Eight March discretionary trust) and First Priority Developments Pty Ltd, to acquire and develop sites. It is unnecessary to distinguish between Habitare and its subsidiary companies for the purposes of this matter and thus all references below are to Habitare despite the fact that the relevant company might have been one of the subsidiaries. Peter O’Mara was a director of Habitare. David Johnson was also a director and the financial officer of Habitare. Mr Johnson was declared bankrupt on 14 July 2014. His trustee in bankruptcy was notified of this matter and advised that he did not intend to appear. Shane O’Mara is Peter O’Mara’s son and worked for Habitare. Peter Speer also worked for Habitare. Mondo Architects Pty Ltd (Mondo) is a firm of architects. Raymond Sweeney is a director of Mondo. Shane Keiler is an employee of Mondo who prepares architectural plans. Bloomer Constructions (Qld) Pty Ltd is a building company. Wayne Bloomer is a director and the principal of this company. Together, they are referred to below as the Bloomer parties. Habitare, through its subsidiaries, owned and wished to develop two sites with low cost housing, one at Hamish Street, Calamvale and the other at Gawler Street/Norris Road Brackenridge. Habitare entered into discussions with Tamawood about designing and building the low cost housing. Tamawood prepared plans including plans for housing known as the Conondale/Dunkeld (referred to below as the Dunkeld), a single storey duplex, and the Torrington, a two storey duplex. With Tamawood’s agreement, Habitare lodged Tamawood’s plans with the Brisbane City Council (the Council) and obtained development approvals for the development of each site based on those plans. Habitare did not use Tamawood to construct the buildings on either site. It approached Mondo to prepare construction plans. The conditions of the development approvals required, amongst other things, the buildings to be constructed “generally in accordance with” the Tamawood plans. Mondo prepared plans for the two sites to enable building certificates to be obtained. Building certificates were obtained based on the Mondo plans. Habitare, after its initial builder went into liquidation, engaged the Bloomer parties to complete the construction of the buildings on each site. The Bloomer parties did so.

Ratio Decidendi

Legal Principle Established

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